EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority
 

Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No.2) 

Broadcasting Services Act 1992

Purpose

The purpose of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No.2) (the Amendment Declaration) is to amend the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Declaration) in order to declare, under clause 41G of Schedule 4 to the Broadcasting Services Act 1992 (the Act), particular ‘SDTV multi-channelled commercial television broadcasting services’ (SDTV multi-channels) to be the ‘primary commercial television broadcasting services’ for commercial television broadcasting licensees in particular licence areas.

Legislative Provisions

Clause 41G of Schedule 4 to the Act provides that the Australian Communications and Media Authority (the ACMA) may declare one of the SDTV multi-channels provided by certain commercial television broadcasting licensees to be the ‘primary commercial television broadcasting service’ (Primary Service) during the simulcast period or simulcast-equivalent period for the licence area of the licence (subclause 41G(1)).

Subclause 41G(1A) requires that the ACMA must make such a declaration as soon as practicable after the later of when a licensee commences to provide a SDTV multi channel service and the commencement of that subclause.

The declaration of a Primary Service must be made by legislative instrument.

Background

The regulatory regime for commercial television broadcasting services is established by the Act. The Act sets out rules for the conversion, over time, of commercial television broadcasting services from analog to digital mode. These rules include the requirement for a ‘simulcast period’ for each terrestrial licence area, during which time commercial television broadcasting licensees must simulcast their original analog service in both standard definition digital mode (SDTV) and analog mode. This simulcast service in SDTV is taken to be the core commercial television broadcasting service (the core service) for these licensees.[1]

However, the concept of a core service does not apply for licences allocated under section 38B of the Act on or after 1 January 2009. These licences authorise the provision of the following services in digital mode only during the simulcast period:

• two SDTV multi-channels; and
• one high-definition multi-channelled commercial television broadcasting service.

These licences do not authorise an analog service and consequently do not have an SDTV simulcast service or a core service (all services provided under such licences are regarded as multi-channels).

In these instances, the ACMA may declare one of the SDTV multi-channels provided by the commercial television broadcasting licensee to be the Primary Service for the licence in the relevant licence area.

Declaring a Primary Service for these licences will ensure that the regulation of content is consistent with that of other commercial television broadcasting licences.

A decision by the ACMA to declare a Primary Service will affect the operation of certain content regulations that apply to commercial television broadcasting services in or under the Act. These include, for example, the anti-siphoning scheme, program standards (e.g. Broadcasting Services (Australian Content) Standard 2005, Television Program Standard 23 – Australian Content in Advertising and the Children’s Television Standards 2009) and captioning rules.

Operation

The Amendment Declaration amends the Declaration to provide that, during the simulcast period for the two licence areas, being Remote Central and Eastern Australia TV2 and Mt Isa TV1, the SDTV multi-channels specified in the amendments made to Schedule 2 to the Declaration are the Primary Services for the relevant licensees of those services.

Consultation

Section 17 of the Legislative Instruments Act 2003 (the LIA) requires the ACMA to be satisfied that any consultation it considers to be appropriate and that is reasonably practicable to undertake has been undertaken. The ACMA consulted the licensee in each of the Remote Central and Eastern Australia TV2 and Mt Isa TV1, being Central Digital Television Pty Ltd (CDT).

The ACMA also released a Consultation Paper for public and industry comment on declaring Primary Services in the Remote Central and Eastern Australia TV2 and Mt Isa TV1 licence areas on 5 April 2011. The closing date for submissions was on 22 April 2011.

One submission was received in response to the consultation paper from CDT which supported declaring the Primary Services proposed by the ACMA in each licence area.

The ACMA is satisfied that consultation has been conducted in accordance with the requirements of section 17 of the LIA.

Regulatory Impact

The ACMA  has considered whether a regulatory impact analysis process is required by undertaking a preliminary assessment, and formed the view that the recommendation in this submission would give rise to a regulatory change with only minor or machinery impact on the business or not-for-profit sector. The Office of Best Practice Regulation (OBPR) has verified that no further regulatory impact analysis is required for this proposal – OBPR reference number 12066.

Attachment

Further details of the Amendment Declaration are in the Attachment.

Attachment

NOTES ON SECTIONS

Section 1 – Name of Declaration

Section 1 provides that the name of the Amendment Declaration is the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2011 (No.2).

Section 2 – Commencement

This section provides that the Amendment Declaration commences the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 – Amendment of Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010

This section provides that Schedule 1 of the Amendment Declaration amends the Declaration.

Schedule 1 Amendment

[Item 1] Schedule 2, table 1, after item 6

Item 1 inserts two new items into the table at Schedule 2 of the Declaration, being a declaration that the SDTV multi-channel known as CDT (Ten) is the Primary Service for holder of
SL 1130050 in the Remote Central and Eastern Australia TV2 licence area (new item 7) and for the holder of SL 1130051 in the Mt Isa TV1 licence area (new item 8). 

[1] Licences allocated under section 38B of the Act before 1 January 2009 authorise the provision of commercial television broadcasting services in digital mode only. In these cases, the core service is the sole SDTV multi-channel that could be provided before 1 January 2009.  See sections 41A to 41C of, and paragraph 7(1)(m) of Schedule 2 to, the Act.